Sci-Ence! Justice Leak!

The most important single part of the NHS Bill

Posted in politics by Andrew Hickey on March 10, 2012

“The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed”

What this means is that if the bill is passed, only those charges that already exist can be made by the NHS unless and until further legislation is explicitly passed allowing it. This is the crucial piece of wording (it’s an amendment to the 2006 Act’s wording, which didn’t have ‘as part of the health service in England’). It means that *any* new charges to patients have to be explicitly included.

Despite the stuff being put about by Ben Goldacre et al, this is the crucial point. This bill *does not* provide for any further NHS charges. It guarantees a continued free health service. Disagree with the bill if you want (I do), but do it based on the actual bill, not on scaremongering.

And I just wish everyone would stop using scaremongering rhetoric, so I don’t have to post stuff ‘defending’ stuff I disagree with. Argue about the merits of the bill all you want, but please stop saying it’s the end of the NHS, or it privatises the NHS, or it will introduce charges, because it just *doesn’t*. Crying wolf will only mean that if or when a serious effort to do those things ever happens (and I suspect it more likely to happen under a Labour government than this one, because people trust Labour with the NHS, though God know why) no-one will believe you until it’s too late.

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  1. Mark Pack said, on March 10, 2012 at 7:29 pm

    Thanks for posting this. I’ve been trying to wade through all the arguments ahead of tomorrow’s debate, and there’s not much in the way of useful hard evidence in amongst all the heat. Finding this post is a bit like finding an oasis in the desert :) Very useful food for thought.

    • Andrew Hickey said, on March 10, 2012 at 7:31 pm

      No problem. The problem with the bill is that it’s 406 pages of amendments to another bill. There’s very little to grab hold of, and people are flat-out lying on both sides at times, but this bit at least is in there.

  2. Jean Malley said, on March 11, 2012 at 12:23 am

    “The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed”

    Does this not suggest that the bill may be the groundwork for easing the passing of such enactments in the future to recover whatever charges may be deemed necessary? Enactments that we might justifiably fear will be railroaded through, once the dust settles, in a similar way to the dictatorial manner adopted with this bill.

    To suggest the electorate is only reacting to scaremongering rhetoric is insulting. We are reacting to broken promises, downright lies, heartless cuts that affect the weakest members of society and the already very obvious greed and involvement of commercial interests.

    • Andrew Hickey said, on March 11, 2012 at 12:45 am

      No, it doesn’t suggest that. Especially since, as I said if you read what I wrote, the only change to the previous wording , from Labour’s bill from 2006 – is to add in the bit about England, since this bill doesn’t apply to the NHS outside England.

      “the electorate” isn’t reacting to anything. Individuals are. And when those individuals are libelling friends of mine, accusing me and my friends of being a party to the destruction of the NHS, and doing so without having bothered to check the most basic of facts, then frankly I do not give a shit if I’m insulting them, because they started it.

      As for the comments about cuts, I’d point you to the post at http://splithorizons.blogspot.com/2011/09/whos-getting-their-way-on-spending-cuts.html , which shows that this government is cutting *less* than Labour planned to. Almost all cuts, by their nature, disproportionately affect the poorest, but the Lib Dems have done as good a job as possible of minimising the negative effects of cuts which all three major parties were agreed had to be made.

      None of which, of course, has anything to do with the actual issue at hand, which is that the bill under discussion simply *does not* do any of the things its opponents are claiming, and anyone who argues that it will introduce charges for services that are currently free is either a liar themselves or has been conned by liars.

  3. Kieron said, on March 11, 2012 at 10:51 am

    I agree the bill does not allow for the NHS to introduce new charges. However, what it does do is pave the way for a system where the british public find themselves having to take out ‘top up’ health care insurance if they want/need to receive some kinds of care currently free on the NHS.

    Whilst people are free to pay for private care on top of NHS care now, what the bill opens the door to is the NHS becoming almost as much a provider of private care as of free NHS care. It does this by allowing foundation trusts to make 49% of their income from private care, up from the curent limit for most trust of 2%, that’s a 2450% increase. The Government’s stated aim is that all NHS hospital trusts become foundations trusts so the bill creates the framework for a system where nearly half of the care provided by NHS organisations is paid for.

    What Lansleyand and his friends in the US health insurance market have in mind for us is a progressive drift where people buy ‘top up’ insurance packages for the ‘extras’ the NHS is not able to provide, or so they can get treatment quicker. It wil start small but by the time we get to the point where those extras account for nearly half of NHS business they will not be ‘extras’ at all but essential care. Care that only those who can afford top up insurance wil receive. There is also a near certainty that in an NHS that provides this much care to private customers waiting times for the state funded patients will rise as private customers jump the queue.

    The bill wil not make this happen from day 1, but in makes all the legal changes needed to make it happen. If the conservatives are reelected for a second term they would be able to move britain to a point where large numbers of people feel they have no choice but to take out ‘top up care’ by 2019 without any further legislation. With those who cant afford the top up receiving a second rate service.

    And if you think healthcare more like the USA might be a good thing, bear in mind that America spends vastly more both per head of population and as a percentage of GDP (15% as opposed to 8%) on healthcare than the UK yet American’s die younger and many cant access what we would consider basic care. If you don’t believe me read this article in the Telegraph.

    http://blogs.telegraph.co.uk/finance/jeremywarner/100000571/us-healthcare-expenditure-the-biggest-waste-of-money-in-the-world/

    • Andrew Hickey said, on March 11, 2012 at 12:15 pm

      See, this is an actual genuine worry, though I’d like to know where the 49% figure comes from, because neither this bill nor the 2006 and 2009 acts it amends have hard limits on the amount of money a foundation trust can earn from private provision – what there was was a cap in the 2006 act which says that whatever a foundation trust earns from private provision in its first year is, as a percentage, the most it can ever earn. That’s now been lifted.

      So yes, this is a worrying aspect, and one of the reasons I’m not happy with the bill. HOWEVER, I believe that the changes made by the Lib Dems, ensuring the Secretary of State has a duty to provide a comprehensive health service, neutralise a lot of this worry – any changes that impact on providing such a health service can and will be challenged in court as a result.

      The original bill, as unamended, would have had precisely this effect – and I would have supported any and all efforts against it. Being married to an American, I know all too well what the USian system is like, and will never, ever, under any circumstances support anything that moves us closer to that position. But while the original bill would have done so, I believe that there are enough safeguards in the amendments made by Lib Dems that it won’t now do so.

      Of course, any future Tory (or for that matter Labour) government is very likely to want to get rid of those amendments, but that’s a battle to fight then.

      • Ami Bender said, on March 15, 2012 at 8:03 am

        Here is a good summary *I think* of where the 49% comes from. http://fullfact.org/factchecks/NHS_bill_Shirley_Williams_Polly_Toynbee_49-3395

        • Andrew Hickey said, on March 15, 2012 at 8:12 am

          Yeah, I saw that later, and was meaning to link it today. So it’s 49% of revenues, not 49% of patients (huge difference), and it can only increase to that figure by small annual increments, with various safeguards in place, and some foundation trusts are as high as 30% already (so there’s not a 2% limit now). Thta’s not something I’m *happy* about, but it is something I can cope with.

          • Ami Bender said, on March 15, 2012 at 9:11 pm

            Honestly, From everything I have read the NHS bill looks lousy. The Lib dems made it better then it was, but that doesnt mean its great. Its much easier in the future to make minor changes to remove safeguards then it is to set an infrastructure. So I just wonder how long until the safeguards begin being removed or circumvented?

            I am also very sceptical at the privatisation. I dont mind the NHS hiring private companies, but i am seriously sceptical about the aims of those doing the contracting and the aims of us consumers being necessarily aligned, i.e. maximise profit/reduce costs vr best service. I can also already see companies with no specialist knowledge taking over specialist roles for those who are least able to complain if something is not done right (e.g. kids with special needs). And where is the profit in working closely with other areas, like community, if you do not make any profit out of it?

            I think the worst bit is that this bill will kill support amongst the Lib dem left. It doesn’t matter if the Lib dems have made it better or not, most of the left lib dem supporters I know are seeing it as a yes/no issue.

            • Andrew Hickey said, on March 15, 2012 at 9:55 pm

              With any bill though you can say “what if someone alters it in the future?” – we can only fight the battle in front of us.

              As for privatisation – this actually moves away from some of the privatisation in the 2006 bill – making sure competition is no longer on price alone but has to take quality of care into account. So your second paragraph actually applies mroe to the 2006 bill than this one.

              And as for losing left-wing Lib Dem support, I agree totally (and I’m about as left-wing as it gets). That’s one reason for all the posts about it I’ve done. I’m hoping that as they see over the next three years that most of their fears are unfounded, they’ll reconsider.

  4. Jean Malley said, on March 11, 2012 at 10:57 am

    Not ‘giving a shit’ about those of us who are frankly terrified by this bill is sadly the attitude that is coming across from this coalition government.

    If we have the wrong idea about this bill, then surely it is because government dictatorial actions have made us suspicious and government communication has failed to convince us (as well as the majority of people who actually run the NHS – people whom most of us trust more than here-today-gone-tomorrow politicians). This is hardly surprising when Cameron promised NO top-down reorganisation of the NHS immediately before organising a major top-down organisation. With the best will in the world I can only surmise that he knew he would not get elected if he was honest about these plans in his manifesto. To me that approach is lying by default – how was that ever going to engender trust?

    And to talk of ‘being conned by liars’ sits rather uncomfortably against the photo of Nick Clegg holding up his pledge to vote against any increase in university fees!

    • Andrew Hickey said, on March 11, 2012 at 11:52 am

      Learn to read. I said I don’t give a shit if I’m insulting to people who insult me first, not that I don’t care about people who have been terrified by the lies Labour are telling. You should probably also read the Conservative manifesto, since it actually lays out, in detail, precisely the changes made by the bill as originally drafted by Lansley. The fact that you didn’t bother to read the Tory manifesto doesn’t change what’s in it.

      And I’m not defending Clegg’s actions over the tuition fees issue (though I easily could). If you want to hate the Lib Dems over that, feel free. What I *am* doing is pointing out the simple fact – that those who say this bill introduces new charges or privatises the NHS are lying.

      • Jean Malley said, on March 11, 2012 at 12:18 pm

        Being dismissive and patronising to me doesn’t help your case. Just because I used the same term to describe the government’s attitude to the electorate did not mean I hadn’t read your post and understood your use of it .

        And whether or not you are able to defend Clegg’s attitude over tuition fees doesn’t alter the fact that he did not keep his pledge, which is the point I was making.

        • Andrew Hickey said, on March 11, 2012 at 12:34 pm

          And responding to the posts that are in your head, rather than the one I actually wrote, does not help your case, though quite what your actual case *is* I fail to see, other than that all Lib Dems everywhere are evil, because Nick Clegg is the first and only politician ever to break a campaign promise.
          Note that those people who have raised actual (or perceived) problems with the bill have been dealt with politely. I have been impolite to you because you have done nothing but hurl abuse about unrelated matters. I see no possible benefit to myself or anyone else in allowing you to continue posting here, so I shall now be blocking you.

      • Chris Browning said, on March 11, 2012 at 3:02 pm

        andrew – this kind of reply doesn’t help people who, like me, aren’t particularly good with the nuances of politics. all i know is i distrust the tories on a visceral level and thus doubt most plans they come up with – this is a weakness on my behalf i know, but when it comes to trying to understand that what appears to be a bad law necessarily isn’t then blanketly insulting someone who – much like me – tends to act from the gut and not from the brain is a very, VERY bad move.

        • Andrew Hickey said, on March 11, 2012 at 3:21 pm

          This is someone who came along and accused me of being insulting for stating simple facts, when I’ve spent the last two days putting up with actual abuse based on lies and misinformation.
          Frankly, if people are willing to spread lies about me and my friends without bothering to check the facts (or worse, having checked the facts and knowing they’re lying) they deserve my anger. I’ve spent two years, now, putting up with verbal abuse on all sides for daring to be a member of a party in government, and I’m sick to death of it.
          I’ve been perfectly polite to everyone else in this thread, because they’ve been polite to me. But this person came in looking for a fight, and I’m not going to just sit there and take abuse from all sides any more, especially not in a comments thread on my own blog.

  5. Ami Bender said, on March 11, 2012 at 11:45 am

    Hmmm. Reading through Ben Goldacre’s linked article, it says that a lot of what is specifically mandated for the NHS to cover is no longer specified or required. From my understanding of the wording, this means that current mandated or covered services could be removed from those covered by the NHS in a particular area and as such could be charged.

    As such I think it is fair to say that the bill will potentially bring in charging for current NHS services.

    • Andrew Hickey said, on March 11, 2012 at 11:57 am

      Reading through the actual bill, as I have a couple of times now, I *think* (I am not a lawyer so my interpretation could be wrong – but then neither are Goldacre nor the person he links to) that the sections they’re talking about actually state that CCGs (the replacement for PCTs) will have more flexibility in deciding what to prioritise (which can be A Good Thing – you’d want to prioritise geriatric care more in an area with lots of old people, drug rehab in an area like Moss Side, and so on).
      It also says that local councils have the ability to provide those services if they disagree with the CCG, and that the secretary of state has a duty to provide comprehensive cover.

  6. Nile said, on March 11, 2012 at 12:52 pm

    Yes, every word that you have written is true. The NHS does not and cannot charge for treatment, in it’s present form, without additional primary legislation.

    No-one can accuse you of lying.

    Now let’s see how this plays out in the doctor’s surgery:

    “Well, Mrs M, I’m we will need to replace your knee cartilage. It’s not urgent, but I can see that you needed a stick to get to the surgery, and you are increasingly reliant on a wheelchair on ‘bad days’…

    “I’m afraid that it’s only going to get worse without surgery…

    “Nowadays this is a routine operation, and I don’t see any problems…

    …Doctor, I’ve been expecting this. When can I go in for surgery?”

    “Ah. Bromphampton Health Trust have an 18-month waiting list for that operation. And I can’t guarantee that you’ll get on the list…

    …But I’ll have to stop work! And are you telling me that the NHS won’t treat me when it’s the difference between walking and a wheelchair?”

    “The NHS will treat you, free of charge, for most conditions; however, not all treatments are funded, and not all funded treatments are available without a wait…

    …So, Doctor, I won’t be charged for treatment by the NHS. But I won’t be treated this year, or even next year, or maybe ever”.

    …What’s the cost of having it done privately?”

    “Two thousand, eight hundred and fifty pounds, and we can bring you in on Thursday”.

    Nope. No charges on the NHS here. Nothing to see here, move right along…

    …And maybe move another area, because Bromphampton have reviewed provision of several low-priority non-urgent treatments, and they will no longer offer knee cartilage replacement after April 2013. Even if the alternative, for a working adult, is a wheelchair, unemployment, and a lifelong dependency on heavy-duty painkillers.

    The NHS bill offers a legal framework to regularise this situation, which has existed for most of this century: the big difference is local decision-making on ‘de-prioritising’ and discontinuing treatments that every doctor and every voter would – quite reasonably – have considered essential.

    I din’t think that any patient will have to raise the subject of payment if it’s “So, doctor: either I pay or I die” – but “Pay to walk again” and “Pay to see again” are not only foreseeable, they are legally unchallengeable: the NHS reform bill relieves the Secretary of State – and all branches of the state – of all legal responsibility to provide a standard of care – or any care and treatment whatsoever.

    An aside: I hope I’m right about ‘Pay or die’ – but I might not be. I am certain that less soundbite-ready and media-friendly conditions – major depression especially – are going to show a significant rise in mortality in the next decade.

    I am certain about this, though: more money will flow to private providers, directly from patients.

    But I am happy to confirm that you are being truthful when you state that the NHS does not charge for treatment.

    • Andrew Hickey said, on March 11, 2012 at 1:05 pm

      This is an accurate description – of the bill *before* it was amended. The crucial point is where you say “the NHS reform bill relieves the Secretary of State – and all branches of the state – of all legal responsibility to provide a standard of care – or any care and treatment whatsoever.”

      It did in Lansley’s original draft. It doesn’t now, with the Lib Dem amendments in.

      The Bill clearly states:


      Secretary of State’s duty to promote comprehensive health service
      (1)
      The Secretary of State must continue the promotion in England of a
      comprehensive health service designed to secure improvement—
      (a) in the physical and mental health of the people of England, and
      (b) in the prevention, diagnosis and treatment of illness.
      (2)
      For that purpose, the Secretary of State must exercise the functions
      conferred by this Act so as to secure that services are provided in
      accordance with this Act.
      (3) The services provided as part of the health service in England must be
      free of charge except in so far as the making and recovery of charges is
      expressly provided for by or under any enactment, whenever passed.”

      [...]

      The Secretary of State must exercise the functions of the Secretary of
      State in relation to the health service with a view to securing continuous
      improvement in the quality of services provided to individuals for or in
      connection with—
      (a) the prevention, diagnosis or treatment of illness, or
      (b) the protection or improvement of public health.
      In discharging the duty under subsection (1) the Secretary of State 25
      must, in particular, act with a view to securing continuous
      improvement in the outcomes that are achieved from the provision of
      the services.
      The outcomes relevant for the purposes of subsection (2) include, in 30
      particular, outcomes which show—
      (a) the effectiveness of the services,
      (b) the safety of the services, and
      (c) the quality of the experience undergone by patients.
      In discharging the duty under subsection (1), the Secretary of State
      must have regard to the quality standards prepared by NICE under
      section 233 of the Health and Social Care Act 2012.”
      The Secretary of State’s duty as to reducing inequalities
      After section 1A of the National Health Service Act 2006 insert—
      “1B
      Duty as to reducing inequalities
      In exercising functions in relation to the health service, the Secretary of
      State must have regard to the need to reduce inequalities between the
      people of England with respect to the benefits that they can obtain from
      the health service.””

      That last duty to reduce inequalities, in particular, is a new and very welcome thing, and one that a lot of trans activist friends of mine are very happy about.

      As I said in my earlier post, if I or anyone I know ends up having to pay for treatment they would currently receive for free as a result of this bill, I will quit the Lib Dems. But I’m as sure as I can be, given the complexity of the bill and my lack of legal training, that that will not happen.

  7. Iain Coleman said, on March 11, 2012 at 6:20 pm

    The main anti-Bill analysis that’s being widely cited is the one by Allyson Pollock et al (available at http://www.allysonpollock.co.uk/administrator/components/com_article/attach/2012-02-28/Pollock_HoL_HSCB_Briefing15_ServicesChargesExclusions_28Feb12.pdf if you haven’t already seen it).

    It all seems pretty murky to me, but Pollock and co-authors are credible people. Would you be able to address directly whether the concerns they raise are justified, based on your reading of the bill? That would be a very valuable service to people struggling to make sense of this whole debate.

    • Andrew Hickey said, on March 11, 2012 at 7:04 pm

      I’d really, really rather not make myself look like an authority on this, and PLEASE don’t take my word on anything. I said I’d read the bill – I didn’t say I understood it all… this is four hundred pages of amendments to other bills, on the “in subsection three paragraph seven, remove ‘when’ and insert ‘whenever’” level.

      That said, the ‘giving local authorities only discretionary powers’ thing should be counteracted by the new requirement to work towards equal provision. My understanding is that these things no longer have to be provided *where there is no need for them*, but that if a need can be demonstrated then they have to be provided.

      The ‘providing fewer services’ bit is again covered by the above.

      In both these cases, the effect of the bill *as I understand it* is that CCGs have an ability to prioritise locally – so drug rehab centres will be more of a priority in Moss Side and Hulme, say, than in a suburban area full of retired accountants. Councils then, as a backup, have the ability to commission some of these services if they disagree with the CCG’s priority. And finally, there’s an obligation to minimise inequalities, so if a service is needed but not provided, appeal can be made to the Secretary of State or the courts.

      So I can see the concern about those points, but think they’re adequately covered by some of the Lib Dem amendments.

      The introducing charges I think is a misreading of the bill. Local authorities are allowed to charge CCGs for services provided to the CCGs, such as lab work and training. I *think* this is the bit they’re referring to, and I *think* they’re reading it as having more scope than is actually there. I didn’t see anything about charging patients directly for those services, anyway. It’s possible I’m doing the misreading, but I think it’s them.

      Their final point, about excluding people, is the most worrying. Their talk of secondary legislation is of course just noise – “it’s not in *this* bill, but what if they do another bill? They could do all sorts of nasty things in that…” – but there are some ambiguous bits of the bill that *may* mean that a CCG in some situations doesn’t have an obligation to treat someone temporarily resident in the area but registered elsewhere, and there’s some stuff I don’t fully understand about what happens to someone ordinarily resident in Scotland, but registered with an English CCG, if they become ill while visiting England. I don’t *think* this is anything to worry about, but I can’t be sure, and it’s certainly worth our parliamentarians scrutinising in greater detail.

      Sorry I can’t provide references to the specific wording, but that would require me going through the bill again to find things, and frankly it’s an unreadable mess and you couldn’t pay me enough to read it again.

      • Iain Coleman said, on March 11, 2012 at 10:57 pm

        I’m tempted to suggest a whip-round – but no, I understand your reluctance.

        This bill doesn’t apply to us up here in Scotland, of course, which should at least give Dr Goldacre a chance to run some comparative statistics on health service performance in due course.

  8. Tony Harms said, on March 14, 2012 at 12:10 pm

    What I felt on attending the conference, attending the debate, the Q and A and public health meetings, and speaking to ministers was the very different viewpoint of the parliamentarians to the membership. The membership saw this as a new piece of legislation designed to move the NHS in a new direction maybe potent, maybe neutered by amendments. The parliamentarians saw the current situation as untenable financially and structurally and already privatised in theory to an undesirable degree by the 2006/2007 Labour acts. They saw the current bill as addressing structural problems especially in the field of chronic conditions and as actually protecting the NHS.
    lets have a look at what Nile said with a real case – me. I have had feet problems for ages and been referred to my local podiatric service with some improvement but a general decline. I have gone to a private podiatrist and been offered better mechanical support but also a steroid injection which has given me three years of very substantial increased mobility and reduced pain. My GP has never offered me this and I suspect because NHS guidelines do not see this as a cost effective treatment. My GPs will read out government guidelines to justify their treatment choices, not all the time but frequently. This is under the system we have now.
    My understanding is that commissioning groups will take decisions on what treatments to offer and manage budgets. They may well drop some treatments – how else can they prioritise? But a lot of this is done now in other ways.
    My concern is not privatisation. And I dont mind clinicians making decisions at local levels. What worries me is the involvement of professional procurement officers whether private or employed. My experience is that they are expert at competition law but not sufficiently clinically and that they tend to prioritise slick presentation and large scale economies above expertise and clinical excellence.

  9. [...] or the facts. Natch. To be fair even those who have read it are still confused. However hats off to Andrew Hickey who has read it three times. He is someone who opposes the Bill but introduces facts (always [...]


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